Vail Daily column: What constitutes 'consent'?

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In Steubenville, Ohio, two high school football players are accused of raping a teenage girl who was blacked-out drunk at an end of summer party. Apparently, the alleged rape was witnessed by many others and disturbing images of the alleged assault were posted to various social media.

One of the more disturbing images which has appeared is of the girl being carried wrists and ankles - the way you'd carry downed game - by her alleged assailants. In the clip, several other young men appear to be joking about the alleged assault. What seems clear is that no one had the courage to step in to prevent it. In fact, in their Twitter and YouTube posts, other Steubenville students who say they witnessed offensive depredations visited against the unconscious girl - including stripping and exposing her, penetrating her and urinating on her - seemed more delighted than disturbed by what they saw.

The lawyer for one of the accused has held that if sex acts did, in fact, occur, they were consensual.

Late last week the United States Supreme Court agreed to consider a case involving an adopted Indian child. While in substantial part, the case focuses on interpretation of the Indian Child Welfare Act, on a more human level what the case revolves around is parental rights and how and when those rights may be forfeited or waived.

The case involves a South Carolina couple who were ordered by South Carolina Supreme Court to turn over a 27-month-old girl they had cared for since birth to her biological father, an Indian, whom the girl had never met. In so ordering, the South Carolina Court said it was doing so "with a heavy heart," and acknowledged that the adoptive couple were "ideal parents who have exhibited the ability to provide a loving family environment."

So, what's up?

Well, the issues are these: while under South Carolina law the girl, Veronica could (and perhaps should) have stayed with the adoptive parents, under federal law (i.e., pursuant to the Indian Child Welfare Act), the right to adopt an Indian child is not as clear.

Lawyers for the adoptive parents say the law should not apply because the child's father had relinquished his parental rights. The father's lawyers countered saying that when he agreed to the adoption, he did not know what he was signing and, therefore, did not give his informed consent.

So what do these two sad cases have in common?

Well, in a word, "consent."

In the Steubenville case, the alleged assailants claim that they are protected from prosecution because the girl consented. In the South Carolina case, the father asserts that the adoption should be reversed because his consent to relinquish his parental rights was not "informed."

So what then constitutes consent?

Black's Law Dictionary defines consent as "a voluntary yielding of the will the proposition of another.... Consent is an act of reason, accompanied with deliberation, the mind weighing as in a balance the good or evil on each side. It means voluntary agreement by a person in the possession and exercise of sufficient mental capacity to make an intelligent choice to do something proposed by another. It supposes a physical power to act, a moral power of acting, and a serious, determined, and free use of these powers... It is an act unclouded by fraud, duress or sometimes even mistake."

As used in the law of rape, "consent" means "consent of the will and submission under the influence of fear or terror cannot amount to real consent. There must be an exercise of intelligence based on the knowledge of its significance and moral quality and there must be a choice between resistance and assent."

It is axiomatic that if one is sufficiently impaired so as to be mentally insensate, however temporarily, he or she cannot be in possession of sufficient mental capacity to make an intelligent choice.

Circumstances in which a person, cannot, by law, give consent include where the person is severely intoxicated or unconscious as a result of alcohol or drugs; and/or where the person is physically or mentally disabled. Once a person says "no" to sexual advances, if the other partner forces penetration, it is rape.

Besides smacking sadly of the Cheryl Araujo gang rape that occurred at Big Dan's Bar in New Bedford, Mass., on March 6, 1983, upon which the Jodi Foster film "The Accused" in based, if in fact the girl in Steubenville was out cold, it is impossible to conceive how she might have consented to the sexual attack and humiliations to which she was allegedly subjected.

The South Carolina case is more difficult. If, in fact, the father was deceived in relinquishing his parental rights, which at least some facts seem to support, then his claims may bear some fruit. Simply, if the facts were not revealed to him and he did not, in fact, know what he was signing, then his consent cannot have been said to have been knowingly and intelligently given. If the facts were not forthrightly presented to him, then he cannot have been said to have considered them.

The Steubenville boys are in trial. The adoption case will be heard by the Supremes. Time and the wisdom of the courts will highlight the precept of "consent" and we will all be the more informed by what justice ultimately is meted out.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. He may be heard on Wednesdays at 7 p.m. on KZYR radio (97.7 FM) and seen on ECOTV 18 as host of "Community Focus." Robbins may be reached at 970-926-4461 or at either of his e-mail addresses, robbins@slblaw.com or robbins@colorado.net.